The impetus driving Congress in its adoption of the Local Community Radio Act ("LCRA") was the desire of LP FM advocates for the elimination of all third-adjacent channel protections between LPFMs and full-power FM stations. While the statutory changes mean that LPFM stations do not need to be spaced at any particular distance from third-adjacent channel FM stations, the changes do not completely eliminate all interference protections afforded to full-power stations. In fact, the LCRA sets up a very extensive scheme where LPFM stations must work to resolve any interference that is created to adjacent channel full-power station. The Commission set forth its reading of the statutory requirements, summarized below, and asked for public comment on that interpretation.

In reviewing the statutory language, the FCC interpreted the LCRA to set up two different classes of LPFM stations, each subject to slightly different requirements as to the interference protections they must afford to full-power stations. LPFM stations that operate at locations that meet the third-adjacent channel spacings to full-power stations that previously were required by the FCC’s rules are proposed to be subject to one set of rules – rules for resolving interference complaints similar to those that are currently in effect – while stations that operate at sites at distances from full-power stations less than previously required, must follow another far more stringent interference resolution standard, the standard that is applied to FM translators.

For LPFM stations that are located at distances below those that were previously required by the rule, the LCRA requires that LPFM stations be subject to the provisions of Section 74.1203 of the rules – the rules that govern FM translators and their potential for interference to full-power stations. The rule requires that these stations remedy all complaints of interference to full-power stations regardless of where these complaints come from – whether inside or outside of the protected contour of the full-power station, and whether to a fixed or mobile receiver.

The NPRM sets out a good summary of the standards that apply to translator interference complaints – the standards that are suggested to apply to complaints of third-adjacent channel interference from LPFMs located at less than the former required spacings. These requirements include the following:

The complaint must come from a disinterested person, e,g, not an employee of the station that is claiming that it is receiving interference

The complaint must set out the name and address of the complaining party, and include a statement that the complaining party is a listener of the station

The complaining party must be willing to cooperate with the station that he or she claims is creating interference to see if that interference can be resolved

If a bona fide complaint meeting these criteria is filed, and the LPFM station cannot show that it is not causing interference, the FCC will notify the station that it should go off the air until the interference can be resolved.

For LPFMs that are at the full spacings to full-power stations, the provisions of the LCRA are much more ambiguous. The FCC asked the following questions about the rules that should be applied to govern complaints of interference from such stations. These questions include:

The LCRA requires that an LPFM “address” any complaints of interference. The FCC asks what that means – what must an LPFM do to “address” a complaint?

Does the use of “address” rather than “resolve” mean that such stations should continue to apply the current interference standard applicable to LPFM stations in Section 73.810? This section requires resolution of complaints only within the protected contour of the full-power station, and setting up a process of testing between a full-power station and the LPFM if the number of complaints exceeds 30 or 1% of the households within 1 kilometer of the LPFM station’s contour.

Should the Commission establish very specific processes and procedures for the public to submit complaints about interference?

The LCRA also requires that LPFM stations periodically announce on the air that they might cause interference. The Commission asked for comments as to how often such announcements must be made, and whether they need to be made both by LPFM stations that are at full third-adjacent channel spacings and those taking advantage of the abolition of the third-adjacent channel requirements

The LCRA also allows the Commission to grant second-adjacent channel waivers. However, much stricter standards apply to these waivers. The Commission reads the statute to require that the FCC notify an LPFM operator of a complaint of interference within one business day of its receipt, and the LPFM must immediately cease operations until it can either resolve the interference or prove that it is not the source of the interference. The FCC asks for comments on what would constitute a bona fide complaint that would trigger the obligation to cease operations, and how these procedures should be implemented.

The FCC asks for comments on when second-adjacent channel waivers should be granted.

Should they be granted only where necessary to preserve an LPFM from being bumped off the air by a new or improved full-power station?

Should the LPFM applicant be able to prove that no interference will exist by relying on the translator standards that allow translators to show that any interference that would occur would happen only at locations where no people live (e.g. where it would be predicted to occur high in the air near the station antenna, or in some other uninhabited location)?

Should an LPFM be able to use a directional antenna to minimize interference to justify such a waiver?

The Commission notes that, under its current second adjacent channel waiver policy, it balances the interference that may be caused from a waiver against the benefit to be gained (which is the protection of an LPFM service, as these waivers have only been applied to existing stations). It tentatively determines that the statute does not allow such balancing for second-adjacent channel waivers. It tentatively determines that, if there is any interference, the LPFM must cease operations no matter what public interest benefits there may be.

Under the interpretations of the LCRA proposed to be adopted by the FCC in this proceeding, LPFM advocates may have more opportunities to apply for stations with fewer interference considerations than previously required. However, this may not necessarily be a good thing, as there will also be more opportunities for LPFM stations to start broadcasting and then be forced to cease operations if interference is caused to a full-power station. For translators that operate under similar standards, being forced to cease operations, while costly, may not be that big of a deal, as the translator is but a piece of a bigger operation – the bulk of the income of the licensee coming from the full-power station that is being rebroadcast. But for an LPFM, where there is no supporting primary station, being forced to cease operations due to interference can be devastating – and could cause the loss of donations and grants made to the licensee for the nonprofit operation of these stations. Thus, the Commission should be careful in liberalizing the interference considerations too much, as too lenient rules may result in too many nonprofit companies paying the ultimate price for a too aggressive approach to LPFM siting.

About David Oxenford

David Oxenford represents broadcasting and digital media companies in connection with
regulatory, transactional and intellectual property issues. He has represented broadcasters before the Federal Communications Commission, the courts and other government agencies for over 30 years. Continue Reading

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David is a partner at the law firm of Wilkinson Barker Knauer LLP, practicing out of its Washington, DC office. He has represented broadcasters for over 30 years on a wide array of matters from the negotiation and structuring of station purchase and sale agreements to regulatory matters. His regulatory expertise includes all areas of broadcast law including the FCC’s multiple ownership limitations, the political broadcasting rules, EEO policy, advertising issues, and other programming matters and FCC technical rules.